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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, September 1, 2016

How not to investigate a sexual harassment complaint

This case reminds us that when an employee complains about sexual harassment, management has to stop everything and take it seriously. If management fails to do so, the plaintiff can sue her employer under Title VII. The case also says for the first time that "Cat's Paw" liability can apply when the antagonist is a co-worker and not just a supervisor.

The case is Vasquez v. Empress Ambulance Service, Inc., decided on August 29. After plaintiff rebuffed Gray's repeated sexual advances, she reported the harassment to management. Gray found out about the complaint and immediately presented management with forged text messages and questionable photographs that made it look like he and plaintiff had been romantically involved and that she had sexually harassed him. Management took Gray's word for it and did not investigate any further, refusing plaintiff's attempts to place Gray's "evidence" in context. She was fired shortly thereafter.

This is not how we investigate sexual harassment claims. Any HR representative will tell you that management should hear out all sides and not simply ignore the victim's evidence. The question here is whether the employer can be held liable under Title VII. Under the Cat's Paw theory of liability that the Supreme Court adopted a few years ago, if the decisionmaker is unwittingly influenced by a discriminatory supervisor who wants the employer to terminate the plaintiff, then the employer is liable if the bad guy influenced the decision. (If you want to know where the Cat's Paw terminology came from, Google it. Judges like to repeat the fable from which it derives, which makes it probably the most commonly-referenced Aesop's fable in the federal judiciary).

In this case, management argues that it was the co-worker and not management that had committed the discriminatory acts against plaintiff, and that the Cat's Paw theory therefore cannot not apply. The Second Circuit (Walker, Calabresi and Hall) disagrees, holding that "Assuming that Empress knew or should have known of Gray’s retaliatory animus, the fact that 'Gray was nothing more than . . . a low-level employee with no supervisory or management authority,' cannot shield Empress from answering for Gray’s conduct because Empress’s own negligence provides an independent basis, under Ellerth and agency law, to treat Gray as Empress’s agent and hold Empress accountable for his unlawful intent." (Ellerth is the Supreme Court case that says management is liable for supervisory sexual harassment if it fails to take the harassment complaint seriously). In addition, the Court says, "Such a negligence-based approach to 'cat’s paw' liability, moreover, fully comports with established Title VII caselaw in our Circuit requiring that a biased non-decisionmaker play a 'meaningful role' in an adverse employment decision for the unbiased decisionmaker to be culpable." Put another way,

Empress’s alleged negligence—in crediting Gray’s accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known of Gray’s retaliatory animus—caused Gray’s accusations to form the sole basis for Empress’s decision to terminate Vasquez. Thus, as a result of Empress’s negligence, Gray achieved a “meaningful,” and indeed decisive, role in Vasquez’s termination. Put differently, while Gray might, on other facts, have played no greater part than that of a mere “informant” or “witness at a bench trial,” who simply offered information for the decisionmaker’s examination, on the facts before us, viewed in the light most favorable to Vasquez, Gray became the entire case against Vasquez when Empress negligently chose to credit his, and only his, account.